476国际私法讲稿

第十四章继承的法律适用 法定继承的法律适用区别制同一制两者的利弊遗嘱的法律适用立遗嘱能力的法律适用遗嘱方式的法律适用

遗嘱解释的法律适用

遗嘱撤销的法律适用SuccessionThe

law

of

all

states

distinguishes

strictly

between

succession

toimmovable

and

to

movable

property.

As

a

general

rule,

the

law

of

thesitus

of

the

immovable

property

applies

to

succession

to

it;

the

law

ofthe

decedent’s

domicile

at

death

applies

to

succession

to

movableproperty.1.

Intestate

successiona.

immovables:

the

law

of

a

state

in

which

the

land

is

situated

controlsand

governs…

its

passage

in

case

of

intestacy.

Situs

law

thereforecontrols

who

succeeds

in

the

case

of

intestacy

and

to

how

much.b.movables:

the

state

where

movable

property

is

located

of

coursehas

control

over

its

disposition.

However,

all

states

have

adopted

thechoice-of-law

rule

which

applies

the

law

of

the

decedent’s

domicile

atdeath

to

the

succession

to

his

or

her

movable

property.

This

achievesthe

desirable

result

to

have

the

decedent’s

estate

treated

as

a

unit,

eventhough

the

assets

are

located

in

different

states.

It

also

effectuates

thedomicile’s

interest

in

making

provision

for

surviving

family

members.2.Testate

successionA.

immovableformal

validity:

since

the

will

operates

as

a

transfer

of

the

land,its

validity

is

governed

by

situs

law.

Since

different

laws

may

havedifferent

formal

requirements,

a

will

may

be

valid

to

devise

land

inone

state

but

not

in

another.equitable

conversion:

assume

that

a

will

directs

the

executor

tosell

land

located

in

A

and

to

distribute

the

proceeds

as

directed

bythe

will

to

named

heirs

at

the

testator’s

last

domicile,B.

Does

thisprovision

of

the

will

deal

with

immovable

property

or

does

the

willdeal

with

movable

property,

the

proceeds

of

the

sale,

to

whichdomiciliary

law

applies?

This

involves

the

doctrine

of

equitableconversion:

“

equity

regards

as

done

that

which

ought

to

be

done”,i.e.,

the

testator

had

wanted

to

“convert”

the

land

into

money,

andthis

will

therefore

be

considered

as

having

occurred.B.

MovableFormal

validity: the

traditional

rule

refers

to

the

law

of

thetestator’s

domicile

at

death

as

governing

questions

of

formal

andsubstantive

validity.

With

respect

to

formal

validity,

statutes

providingfor

alternative

validating

references

apply

also

to

movable.substantive

validity:

the

domicile

at

death,

from

a

policy

of

view,has

the

greatest

interest

in

such

questions

as

the

forced

share

of

thesurviving

spouse

and

children,

the

statutory

allowance

for

survivingfamily

members

pending

probate,

and

the

like.C.

Forced

shares:

the

right

of

the

surviving

spouse

to

take

a

statutoryshare

is

determined

by

the

law

of

the

decedent’s

domicile

at

death

formovable

property

and

by

situs

law

for

immovable

property.D.

Family

allowance:

statutes

provide

the

surviving

spouse

and

minorchildren

of

the

decedent

with

temporary

support

for

the

timeimmediately

following

the

decedent’s

death.

The

general

rule

is

that

afamily

allowance

can

be

sought

only

in

the

domiciliary

state

and

underits

law.案例14-1吴某遗产分配案吴某是上海某大学教师，1988年辞职后到日本留学，

1990年即将回国时在日本骑车时被一小车撞死。他的妻子周某以全权代理人的身份，在吴某大哥的陪同下，东渡日本料理后事。经受委托的日本律师的努力，周某获得下列赔偿：（1）“逸失利益”，即假定吴某健在到退休时可获得的经济收入30万元；（2）精神损害赔偿费，30万元；（3）对自行车的赔偿1000元；（4）吴某在日本投保了人身保险，获得保险金10万元。周某带着总共70余万元回上海。对于这笔钱如何分配，吴某的父母及兄弟姐妹与其妻子周某发生争议，无法解决。吴某的父母及兄弟姐妹以周某及其女儿为被告，于中国法院起诉。请问：中国法院应该如何适用法律？案例14-2姜伟勋遗产案任爱玲与姜伟勋1958年12月在广州登记结婚。婚后生有两个女儿。1963年，姜伟勋只身到香港定居。

1983年，姜伟勋在香港开设公司，